Salmo v Park [2015] NSWCATCD 86

Salmo v Park [2015] NSWCATCD 86

The tenant's solicitor's email did not specify the date by which vacant possession was to be given, was not signed by the tenant or her solicitor, and was not served by a method required by s 223, so it was not a termination notice given in accordance with Part 5 of the Act. The tenancy was terminated just over two months into a 12 month fixed term agreement containing clause 41, and the evidence of a single or possible second snake sighting did not objectively establish an ascertainable risk or a breach by the landlords amounting to a permitted basis for early termination under the Act. The tenant was therefore liable for the 6 weeks rent break fee and for proven or accepted costs...

Jurisdiction
Australia
Judgment Date
17 July 2015
Procedural Posture
Residential Tenancy Applications by Landlords Against Tenant / Principal Judgment After Hearing of Two Applications Dealt With Together
Outcome
Applications substantially allowed; declaration and money orders made for the landlords, with the rental bond to be paid to the landlords and credited against the money orders.
Legal Topics
['tenant Early Termination of Fixed Term Tenancy' 'termination Notice Requirements' 'break Fee' 'breach of Residential Tenancy Agreement' 'swimming Pool Maintenance' 'yard and Garden Maintenance' 'water Usage' 'rental Bond']
['residential Tenancy Law'] ['tenant Early Termination of Fixed Term Tenancy' 'termination Notice Requirements' 'break Fee' 'breach of Residential Tenancy Agreement' 'swimming Pool Maintenance' 'yard and Garden Maintenance' 'water Usage' 'rental Bond']

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Procedural Posture

Residential Tenancy Applications by Landlords Against Tenant / Principal Judgment After Hearing of Two Applications Dealt With Together

Legal Issues

  1. 1 ['Whether the tenant gave a valid termination notice in accordance with Part 5 of the Residential Tenancies Act 2010.' 'Whether the tenant was liable to pay a break fee for early termination of the fixed term residential tenancy agreement.' 'Whether the sighting of a Red Bellied Black Snake provided a permitted basis under the Act for early termination or established breach by the landlords.' 'Whether the tenant was liable for pool cleaning, garden and yard maintenance, and water usage costs.' "Whether Rental Bond Services should pay the tenant's rental bond to the landlords."]

Ratio Decidendi

The tenant's solicitor's email did not specify the date by which vacant possession was to be given, was not signed by the tenant or her solicitor, and was not served by a method required by s 223, so it was not a termination notice given in accordance with Part 5 of the Act. The tenancy was terminated just over two months into a 12 month fixed term agreement containing clause 41, and the evidence of a single or possible second snake sighting did not objectively establish an ascertainable risk or a breach by the landlords amounting to a permitted basis for early termination under the Act. The tenant was therefore liable for the 6 weeks rent break fee and for proven or accepted costs...

Court Disposition

Applications substantially allowed; declaration and money orders made for the landlords, with the rental bond to be paid to the landlords and credited against the money orders.

Orders

  • ['The Tribunal declares pursuant to section 111(2) of the Residential Tenancies Act 2010 that the tenant, Kyungai Park, failed to give a termination notice to the landlords, George and Therese Salmo, in respect of the Residential Tenancy Agreement, in accordance with Part 5 of the Act.' "Pursuant to section...